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Wide Nets, Heavy Burdens: Unpacking Executive Order 14105’s Final Rule
No full textExecutive Order 14105 “Addressing United States Investments in Certain National Security Technologies and Products in Countries of Concern” was enacted to protect U.S. national security interests in light of China’s military technological growth. This Executive Order creates an outbound investment review program that restricts investments by a U.S. person into companies in specified countries operating in certain technology sectors. This Note will discuss the background of geopolitical tensions between the United States and China, review E.O. 14105, and argue that the program it creates results in burdensome unintended consequences to the U.S. economy. These unintended circumstances include: (1) high regulatory compliance costs, (2) trade wars, (3) a decrease in U.S. competitiveness, and (4) retaliatory policies from China. Along the way, this Note will propose methods and considerations to alleviate some of these burdens
Incremental Innovation
No full textTransformative innovations—the ones that use new technologies to disrupt the world—command our attention. But most new products are the result of a more mundane process of incremental iterative innovation, evolving through a long series of small modifications of existing technologies. Although both kinds of innovation can result in improved safety and utility, both can also create new dangers. We tend to be more aware of this in transformative innovations (as current worries over artificial intelligence show); by contrast, dangers created by incremental iterative innovation often go unrecognized, because the process itself is easy to overlook. Policymakers and regulators need to be aware of both kinds of innovation and to consider different approaches to each if we are to reap their benefits and avoid their dangers.
Unfortunately, incremental iterative innovation has often been neglected, sometimes with devastating consequences. This is particularly true in the field of FDA-regulated medical devices, which have caused hundreds of thousands of injuries and deaths. Critics have attributed the harms caused by one particular set of devices to incremental iterative innovation, but they have failed to appreciate the full scope of this process, leading them to overlook the dangers posed by many other devices.
This Article is the first to identify the full scope of incremental iterative innovation in the medical device field. It develops a nuanced understanding of where this process is taking place and where it is creating dangers, and suggests regulatory reforms designed both to ensure safety and to support innovation. Using the device field as a case study, the Article also helps to expand our understanding of how incremental iterative innovation and regulation intersect in other contexts
Legislatively Erased: The Failure of Privacy Legislation to Protect People Connected to the Criminal Legal System
No full textThe Autonomy Default Paradigm in Contract Law
No full textYou can scribble an agreement on a napkin or hire lawyers to negotiate a hundred-page contract. Either way, most of your contractual obligations will not be in your document. They will be in the background rules contract law applies absent your express agreement. Justifying these defaults is a core task of contract theory; getting them right is a core task of contract law.
This Article introduces the autonomy default paradigm, a conceptually coherent and normatively attractive account of contract law defaults. We show that defaults are justified to the extent they enhance our autonomy, understood as self-determination. They vindicate our autonomy through two pathways: (a) empowering defaults that proactively facilitate people’s autonomy and (b) safeguarding defaults that protect our future selves and ensure relational justice.
Often, the parties to commercial contracts are legally sophisticated players who just want to get wealthier. There, the welfare-maximizing default is often the autonomy-enhancing one. But for the vast run of contracts—getting jobs, getting married, buying homes, buying stuff—autonomy defaults may diverge from their efficiency-based counterparts. In these cases, the law often does and always should opt for autonomy defaults, even at the price of some efficiency
Beyond Loper Bright: Iterative Construction at the National Labor Relations Board
No full text“[The agency’s actions] express an intuition of experience which outruns analysis and sums up many unnamed and tangled impressions—impressions which may lie beneath consciousness without losing their worth. The board was created for the purpose of using its judgment and its knowledge.”- Justice Oliver Wendell Holmes, 1907
Trust matters. In the 1935 National Labor Relations Act, Congress entrusted the heavy responsibility of protecting labor peace to a board of experts and an administrative agency, both steeped with experience in resolving labor disputes and fluent in the science of industrial relations. This was no accident. For decades prior, federal courts obstructed labor activity, using their injunctive power to enjoin strikes and make peaceful protest contumacious. To prevent this obstruction from occurring under the new federal labor law, Congress gave the National Labor Relations Board broad power to implement the Act through adjudication and limited the courts’ role to equitable supervision.
The Act deliberately employed general statutory language to empower the Board with discretion to resolve questions of union representation, police unfair labor practices, and develop remedies for unlawful actions. At Congress’s direction, the Board builds national labor policy in common-law court style, one case at a time. It relies on evolutionary factfinding, accumulated expertise, and the identification of commonalities across thousands of labor disputes. Its work is only marginally statutory interpretation in the traditional sense of divining meaning from ambiguous text; rather, it implicates statutory construction, bringing life to long-settled congressional delegations. We call the Board’s statutory charge “iterative construction.” Over the next ninety years, the courts respected this delegation and deferred to the Board’s reasonable constructions of the Act.
In 1984, the United States Supreme Court issued its decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, which required courts to defer to administrative agencies’ reasonable interpretations of ambiguous statutory language. Courts applied this doctrine to NLRB decisions but primarily held to pre-Chevron NLRA-specific precedent.
Flash forward to 2024: The Supreme Court’s decision in Loper Bright Enterprises v. Raimondo reasserted judicial supremacy over matters of statutory interpretation under the Administrative Procedure Act, overturning the venerable Chevron doctrine. We contend that the Board’s iterative construction of the NLRA—as a reflection of congressional intent and delegation—falls outside of Loper Bright’s domain. The Court recognized in Loper Bright that Congress may delegate agencies the power to fill up the details of a statutory scheme. When it does, the agency’s policymaking falls outside of the APA’s de novo review. Loper Bright does not transfer the power to develop national labor policy under the NLRA to the courts. Instead, it stays where Congress wanted it, and where the courts have long recognized it belongs—with experts in labor relations who understand the importance to a healthy nation of protecting worker rights and preventing labor strife
Brewing Solidarity: Rights Consciousness and Class Consciousness in Coffeeshop Organizing
No full textAlmost ten thousand baristas have unionized since 2022 in cafes across the country. Their effort breaks with recent history in several respects. For example, baristas have used a novel “worker-to-worker organizing” model in which workers themselves—rather than union staff and leadership—design and manage campaigns. Also, while scholars and unionists have argued for decades that the National Labor Relations Board’s secret ballot elections process is a dead end, baristas have used that process quite effectively, winning over 85% of their elections against the major company involved. Through their organizing efforts, baristas have centered the issues and voices of LGBTQ+ workers and younger workers. This campaign therefore raises important questions about law’s role in contemporary worker organizing. To shed light on those questions, my research assistants and I carried out a set of IRB-approved interviews with worker-leaders in 2023 and 2024. This Article reports out our initial findings.
The Article argues that baristas’ self-education in law was critical to the campaign’s success. Our interviewees reported learning key labor law doctrines before organizing, refining their legal knowledge over time, and exercising legal rights in the workplace without extensive assistance from professional organizers or legal counsel. At the same time, interviewees reported feeling that our labor laws did not adequately protect them against employer retaliation. These findings have implications for perennial debates over labor law reform, and for scholarship on the role of law in social movements more broadly.
In my experience with organizing, one of the biggest things is [that people are] not always aware of their rights. They’re not always aware of the law. And one of your primary jobs as an organizer is to have eternal vigilance about this . . . it’s this eternal diligence to just make sure that people know their rights [and] know the law.
It’s a very queer workspace. It’s known for being a queer workspace. And I think that a lot of times, whether you like it or not, if you’re queer or in queer spaces, you kind of do get radicalized because you can see that the system doesn’t work for you in certain ways, right? And then being a worker, you are also able to see how the system isn’t working in that way either
